Posted
by
timothy
on Tuesday November 29, 2011 @12:21PM
from the perhaps-a-bot-but-not-robotic dept.

bhagwad writes "The EU continues to ooze common sense as a court insists that software functions themselves cannot be copyrighted. Drawing a box or moving cursor are examples. To quote: 'If it were accepted that a functionality of a computer program can be protected as such, that would amount to making it possible to monopolize ideas, to the detriment of technological progress and industrial development.'" Note that this is a "non-binding opinion by Yves Bot, an advocate-general at the Luxembourg-based EU Court of Justice,"
and that the court "will rule on the case next year."

Neither is correct. Copyright is for a awarding a monopoly on creating tangible copies of a creative work. It does not need to be a written work (e.g. it could be an audio recording or a film), and it definitely does not include any information conveyed by the creative work.

This case deals in the realm of copyrights, not patents. It's important to note that this is also the rule in the U.S. - neither ideas nor systems/processes/procedures can be copyrighted. The problem, however, is drawing the line between "ideas" (which aren't protected by copyright) and "expression" (which is protected by copyright). As in many areas of law, there is no easy way to determine what exactly is an idea and what exactly is an expression. That's what this case dispute's hinges around.
In conclu

You can't copyright a recipe but you can copyright a cookbook. Likewise you shouldn't be able to copyright a software design/function but you should be able to copyright a software implementation of that design/function.

Substitute the word "function" for "functionality" in the GP's post, and you'll understand the point he was trying to make. While the ellipsis he made is entirely grammatical and allowed in English, it does open the door for pedantry, especially when considering the context, and the second meaning to the word "function" specifically dealing with programming.

There are so many lawsuits flying around over patents, copyrights and wishful thinking that it's no wonder we are in recession. It doesn't matter what you want to do, you are going to get sued by someone. So why bother? People don't.

There are so many lawsuits flying around over patents, copyrights and wishful thinking that it's no wonder we are in recession.

LOL. Yes, clearly recessions are caused by patents and copyrights, and not out of control bankers, loose regulations surrounding investment houses, and various European governments not being able to control their budgets.

I think both out-of-control bankers and out-of-control IP squabbles are symptoms of the current attitude in society, or at least among MBAs, that money can be created out of nothing. It's financial alchemy: it appears to work at first, but only because they are siphoning money away from somewhere else in the process, hence the recession. Solve the underlying attitude problem, and we solve all the symptoms at once. How to do that, I have no idea.

That problem is actually self-solving. It's just another attitude cycle, one that plagues us every generation or so. Unfortunately, we had these damn bailots this time around, which kept it going a bit longer than normal, but the "money can be created out of nothing" folks are finally getting layed off like crazy, all the bubbles are deflating, and reality is inevitably asserting itself. As the pain grows, the attitude will vanish, at least until the next generation of MBAs is loosed upon the world.

Nope. Fiat money has whatever value the government says it has, no more no less. Time value of money is unrelated. Fiat money is backed by military/police force, essentially: the money has value because and only because people with guns can force you to accept the value as real.

Look at a $1 bill [wikipedia.org], and read the message "this note is legal tender for all debts public and private". Physically it's just a worthless piece of paper, but the government is telling you in no uncertain terms to pretend that it has $

I agree with your statement but wanted to add that that pretty much all of the struggling european governments do so because they saved their speculating banks - which speculated with risky US housing loans. Greece and Ireland for example did not have unusually high dept pre 2007.

Fun Fact BTW: Currently Greek dept in absolute numbers is about 170 billion Euros. Germany still ows Greece WW II reparation payments (we wrecked that country and its people pretty bad), which are (inflati

Yeah! Point this argument out to those stifflers [wikipedia.org] and they'll have to start showing you some respect. Protip: flirting with their mothers in a way that shows off your sophistication and culture should get their attention.

We are software developers. We live on opposite sides of the planet and have never communicated with each other. Both of us come up with an idea for an application. We both choose to make and market this app. You file your copyright, I file mine a fed days later. 6 months down the road, you come across my version and seeing that it does the same thing, you file suit against me for violating your IP. You win and I go out of business paying you off. Now, the thing is, the users liked mine better. It was faste

This is nonsense. First, you do not 'file' copyrights. You can register them, but almost no-one does.

To win a copyright case, you must prove that copying (intentional or otherwise) occurred. For software, that means that either the binaries are the same (very easy to prove), or the source code was copied. For the source code to be copied, you must have had access to it. So the first thing the plaintiff must do is show you had access to his source. Then, they make you turn over your source, and compare them. If they are substantially similar, you have a problem. How often does that happen when in fact there was no copying? Almost never.

Now, let's take a more likely case - one that does in fact occur. You spend years designing and developing a product. You release the product. I managed to get your source code (legally or otherwise). I spend a few weeks modifying your code to make it faster, prettier, etc. Users like yours better, so mine doesn't sell. How is THAT fair market competition? It isn't.

IANAL, but I have messed with patent filing before. If an implementation differs sufficiently, it won't infringe (this is harder than you might expect, but it usually possible). For example, you couldn't patent the idea of an automatic transmission. You could patent an automatic transmission that uses hydraulic pressure in a certain way to cause a gearshift internally, but your competitor could patent an transmission that uses hydraulic pressure in a sufficiently different way to cause a gearshift intern

I love how corporations are, supposedly, people, but noone expects them to act ethically or for the good of the society.

Define what that means. Are you suggesting that not patenting inventions, or failing to enforce the patents is ethical? If copycats take advantage of your R&D such that you lose market share and have to lay off employees, that is beneficial to society?

Are you really making the case that people, acting as individuals, are all ethical and act in the good of society?

I am making the case, that people who exploit loophole are generelly frowned upon by other people. A ambulance chasing lawer would be a typical example. Strangely, it's A-OK for corporations to do so.

And I reffer to your "That may be, but if bullshit is the law it is hard to fault companies for using it to their maximum advantage[...}". It would be not hard at all, it we would be talking about people.

A design patent is specifically about the look and feel of a product. This may include rounded corners. It does not rely on prior art in that no one made an electronic device with rounded corners before, but that this tablet computer with rounded corners and certain other features is a certain look and feel that does not exist yet in the tablet computer market.

And, how is that difference relevant?

A design patent is look and feel, a utility patent is how you do something.

A design patent is look and feel, a utility patent is how you do something.

I should have been more explicit. How is that difference relevant to the reasons stated here that software ideas cannot be copyrighted.

"If it were accepted that a functionality of a computer program can be protected as such, that would amount to making it possible to monopolize ideas, to the detriment of technological progress and industrial development,"

How is that difference relevant to the reasons stated here that software ideas cannot be copyrighted.

Patents and copyrights are not the same thing.

From the brief article linked, it appears as though the argument is about software functions, such as drawing a box or moving a cursor. Maybe I miss your point, but I am certainly not arguing that drawing a box on the screen is patentable. How the box is drawn may be, but I don't see that as the argument.

I may have missed something in the article or with the larger story, but I don't see where it is being suggested that the code itself is not copyrightable

That is a design protection, which is something completely different - unfortunately. Let us hope this recent sanity spreads so that the idea that "Software ideas can't be owned" becomes not only dominant but used in lawmaking.

"... that would amount to making it possible to monopolize ideas, to the detriment of technological progress and industrial development."
If only this common sense extended to all patents as well. As if that would ever happen.

The theory of copyright is that if you spend a year of your life and all your savings creating a useful device, that someone else shouldn't be able to come along, rip your work apart, and create a knockoff, charging less for it since they don't have research costs to recoup.

" software functions themselves cannot be copyrighted"When it says "software functions", it doesn't mean functions, it means features, eg. click button to update the table. It's basically confirming that copyright can't be used in the same way as patents, that's why we have patents in the first place [as brain-damaged as they may be].

The EU already doesn't allow software patents anyway (and those it has allowed are unenforceable).

Yes, it does. Or rather, it does in the same exact way as the US allows software patents... and US counterparts for the ones that are unenforceable are also unenforceable here.

In both Europe and the US, software on its own (or 'per se') is unpatentable, but a machine that executes software is patent eligible. Similarly, a method performed by a machine executing software is also patent eligible. Basically, the EPO had a parallel decision to the Bilski decision here, with the same result - software is still patentable, provided it's tied to a machine.

No it doesn't. You are comparing two different systems and claiming that they are the same; one system where software can be patented, and another where hardware can be patented, but the hardware can contain firmware. Those are two different things. In the E.U. you can't patent pure software, or to use your terminology "software not tied to a machine". This is not the same as the U.S. - in the U.S. software is patentable. You don't have to put it inside a machine and patent that - you can literally patent p

No it doesn't. You are comparing two different systems and claiming that they are the same; one system where software can be patented, and another where hardware can be patented, but the hardware can contain firmware. Those are two different things. In the E.U. you can't patent pure software, or to use your terminology "software not tied to a machine". This is not the same as the U.S. - in the U.S. software is patentable. You don't have to put it inside a machine and patent that - you can literally patent pure software.

Descriptive material can be characterized as either "functional descriptive material" or "nonfunctional descriptive material." In this context, "functional descriptive material" consists of data structures and computer programs which impart functionality when employed as a computer component... Both types of "descriptive material" are nonstatutory when claimed as descriptive material per se, 33 F.3d at 1360, 31 USPQ2d at 1759.

... Data structures not claimed as embodied in computer-readable media are descriptive material per se and are not statutory because they are not capable of causing functional change in the computer. See, e.g., Warmerdam, 33 F.3d at 1361, 31 USPQ2d at 1760 (claim to a data structure per se held nonstatutory)... Since a computer program is merely a set of instructions capable of being executed by a computer, the computer program itself is not a process and USPTO personnel should treat a claim for a computer program, without the computer-readable medium needed to realize the computer program's functionality, as nonstatutory functional descriptive material.

See? Same thing as under the EPC. Computer programs per se are not patentable.
Even your link notes this:

"The EPO has meanwhile granted more than 30,000 pure software patents in anticipation of the new legislation, and the number has recently been rising at a rate of 3,000 per year... the European Patent Organisation, i.e. the intergovernmental organisation that runs the European Patent Office, attempted to delete all the exclusions listed under Art 52 of the European Patent Convention. Due to public resistance which they apparently did not anticipate, this effort failed."

Bolded for emphasis. A "pure" software patent is not allowed in either Europe or the US. Patents to software executed by a machine, however, are allowed in both.

Interesting. It was my understanding that the USPTO granted software patents if the algorithm produced a "useful, concrete and tangible result", and that test was so wide that it effectively allowed all software patents. i.e.:

Finally, in State Street Bank v. Signature Financial Group,[12] the CAFC ruled that a numerical calculation that produces a "useful, concrete and tangible result", such as a price, is patent-eligible.[13]....

In 1995, the USPTO established some broad guidelines for examining and issuing software patents. The USPTO interpreted the courts as requiring the USPTO to grant software patents in a broad variety of circumstances. Although the U.S. Congress has never legislated specifically that software is patentable, the broad description of patentable subject in the Patent Act of 1952 and the failure of Congress to change the law after the CAFC decisions allowing software patents, was interpreted as an indication of Congressional intent. Wikipedia: [wikipedia.org]

However, it seems that this has now been supplanted by Bilski and the need for the software to "transform any article to a different state or thing" [wikipedia.org], and where the data structures being transformed need to be "representative of physical objects or substances." So, if I am interpreting

Interesting. It was my understanding that the USPTO granted software patents if the algorithm produced a "useful, concrete and tangible result", and that test was so wide that it effectively allowed all software patents... However, it seems that this has now been supplanted by Bilski

Pretty much.

and the need for the software to "transform any article to a different state or thing" [wikipedia.org], and where the data structures being transformed need to be "representative of physical objects or substances." So, if I am interpreting this correctly, in the U.S. you can patent a method consisting of a pure software algorithm as long as it involves some kind of processing and transformation of data structures that represent physical objects or signals?

Not exactly... The Federal Circuit had two tests in Bilski, the transformation test you noted, and another one called the machine test: a method is patentable if it is tied to a machine. The transformation test really covers things like transformative processes - vulcanizing rubber, for example - while the machine test is more about software.

Now, just to add a pedantic little twist, the Supreme Court reversed the Federal Circuit in Bilski v. Kappos, and said that though the machine-or-transform

In the US, you don't try to patent software per se (you might get lucky doing so, but those patents aren't supposed to be granted). You patent a "computing device which behaves as follows". The same trick works in the EU, sorry.

Well... The EU has no patent authority per se. The EPO however, does allow software to be patented with limited conditions. Not all EU countries are part of EPO and not all EPO members are EU members. That being said, the EPO looks like a much saner organisation that USPTO.

When you copyright your software, you copyright your specific implementation of the code. If someone comes along and writes software that performs the same function but without infringing on your copyright, you are facing competition.

SAS asserted that they were the subject of copyright violation, and attempted to shut down a competitor that created an independent implementation.

Company A should not be able to use Company B's sourcecode should they decompile it (or steal it).

However if Company B creates software that moves widgets around a screen depending on buttons you press on a keyboard. Or causes widgets to do tasks- they should not be able to prevent Company A mimicing their software.

Certainly, things like corporate logos should be protected- but what the software does functionally shoudln't.

If one company can independantly write source that acts the same as another company- they have derived it seperately and fairly.

I'm of the same feelings of patents too. If company A can make a machine to do the same as company B- they should be allowed.

They shouldn't be allowed to mould their parts on the other company and build their own machine that way- but if they can build an equivalent machine that does the same thing- that shouldn't be illegal.

Just a note, for clarification:"clean room" reverse engineering can legally be used to implement a functional replacement for a piece of software.As an example:Person_A creates a piece of software.Person_B studies that piece of software, noting what it does (but not how it does it).Person_C receives Person_B's description, and implements the functionality therein described.

As a real-world example:Google used this process for their Dalvik engine (a clean-room reverse-engineered implementation of the Java int

Person_B sends a copy of the reverse-engineered source code to Person_C under the table, or Person_C gets a back-channel copy of the actual source code from Person_A.

In the real world that happens more often than not (you wouldn't believe some of the stories I've heard). The company just needs to have a policy against it, and scrap the project if anyone actually gets caught.

are not copyrightable. He's saying that the function, aka the generic software method, of drawing a box is not copyrightable. Nobody copied the CODE, which would be a copyright violation. They reimplemented the idea. This is just the equivalent of saying that you can still write books about kid wizards even though JK Rowling already did it. You can have spells that petrify people (that's would be a function, right?), but if you go as far as lifting entire passages (copying the actual code that comprises the function), THEN you're talking about a copyright violation.

You shouldn't need to say any more than that, copyright law explicitly declares that ideas are not protected by copyright, only expressions of an idea are copyrighted. Furthermore, the law clearly states that the creative expression must not be a functional part.

So many people are completely oblivious to this very basic stuff. I know people who don't know the difference between copyright and patent. "IP Law 101" should be a required course in middle school.

She isn't saying that software can;t be copyrighted, she is saying that the idea behind the software, the language, the framework it's based on, or it's interactions can't be copyrighted, only the actual implementation of the software.

Essentially, what we're facing is more akin to "Other authors can't write and publish books because we've patented/copyrighted the concept of letters and words."

Or a carpenter can't build because we've got a patent on wood.

Futhermore, there should be a restriction in regards to the use of programming languages. Should a JavaScript function be patentable/copyrightable? One might argue that JavaScript itself provided the inherent ability to implement. And that a million monkeys typing randomly could have ty